KAN SINGH, J.—This is a wifes appeal and is directed against the judgment and decree of the learned District Judge, Jaipur District annulling her marriage under sec. 12 of the Hindu Marriage Act, 1955, hereinafter to be referred as the "Act", on the ground of wifes impotency and her consequent in capacity to consummate the marriage. 2. Smt. Laxmi Devi, the wife, and Babulal, the husband, were married according to Hindu rites on 17-2-67. According to the husband, appellant Smt. Laxmi Devi had no vagina and was thus impotent at the time of the marriage and continued to be so till the present proceedings for annulment under sec. 12 of the Act were instituted on 3-7-69. The husband relied on a certificate Ex. 1 given by one Dr. E. Peters (D.W. 3) who examined the wife on 6-1-68 and found that the wife had no vagina. 3. The wife resisted the application. She denied that she was impotent. According to her, she had a vagina and after the marriage she had been sleeping with her husband and the marriage had been duly consummated. She proceeded to say that she had been ill-treated by her husband and his people and was turned out of the home after being releaved of the ornaments given to her by her parents. She added that the husband wanted to marry one Mst. Pishta daughter of one Chhangan Lal of Manoharpur and to rest;ain the marriage she had to file a suit in the court of Munsif, Shahpura and it was at that stage that the husband came forward with the allegations that the wife was impotent She further took the stand that her father got her treated and she was found to possess all the female characteristics and further as a result of a surgical operation her vagina was reconstructed on 9-7-68 She was thereafter examined on 13-4-69 by Dr. Padma P. Mirchandani and she certified that the wife had all the female characteristics. 4. The main issue that thus arose in the case was whether the wife was at the time of the marriage impotent and continued to be so till the presentation of the petition and had not consummated the marriage. Babulal, the husband, examined himself as P. W. 1. The wife examined hereself as D.W. 1 and further produced Dr. Padma P. Mirchandani D. W. 2 and Dr. Babulal, the husband, examined himself as P. W. 1. The wife examined hereself as D.W. 1 and further produced Dr. Padma P. Mirchandani D. W. 2 and Dr. E. Peters D. W. 3 in her evidence. Subsequently the husband made a request that the wife be got examined by Dr. Miss Chandrawati Saxena, Professor, S.M.S. College, Jaipur and accordingly Dr. Saxena examined the wife and gave evidence as P.W.2. 5. The learned District Judge accepted the evidence of Babulal as correct. He further relied on the certificate issued by Dr. E. Peters, Ex, 1, wherein she had stated that it was a case of vaginal atresia and that there was complete absence of vagina. Another certificate of Dr. Peters Ex. A/2 dated 27-6-68 was also referred to in which Dr. Peters had diagonised the wifes trouble as atresia vagina and advised Williams operation. Further Dr. Peters stated that the operation was performed by her on 9-7-68 and patients vagina was reconstructed. Thereafter the wife was discharged on 17-7-68. D. W. 2 Dr. Padma P. Mirchandani had examined the wife on 13 4-69 and certified vide Ex. A/l that Smt. Laxmi had all the female characteristics. One more certificate Ex. A/4 given by a Clinical Tutor, Zenana Hospital, Jaipur and countersigned by Dr. E. Peters was also produced in which it was stated that Smt Laxmi had been admitted to the Zenana Hospital, Jaipur on 10-2-70 for rexamination and it was found that she had a vagina 3 long admitting two fingers and that she was fit for intercourse. 6. Taking into consideration the statements of the medical witnesses as also the various certificates and the direct testimony of the husband the learned District Judge had no hesitation in reaching the conclusion that the wife was impotent at the time of the marriage. He found the wifes statement to the effect that she had been having sexual intercourse with the husband to be wholly unreliable. 7. The learned Judge then considered the next question whether the wife could be considered impotent even after the operation had successfully taken place and the wife had her vagina reconstructed. For this the learned Judge did not place much reliance on the statement of Dr. 7. The learned Judge then considered the next question whether the wife could be considered impotent even after the operation had successfully taken place and the wife had her vagina reconstructed. For this the learned Judge did not place much reliance on the statement of Dr. Padma P. Mirchandani because she has simply stated that Smt Laxmi had all the female characteristics She had not even stated whether the girl was fit for sexual intercourse or not Dr. Padma P. Mir-Chandani also admitted that she was even unaware if the wife had undergone an operation for reconstruction of her vagina The learned Judge then considered the evidence of Dr. E Peters and that of Dr.Saxena. Both Dr. E. Peters & Dr .Saxena had been Prof. of Obstetrics and Gynaecology in the S.M.S. Medical College, Jaipur and further they had both been on the post of Supdt. Zenana Hospital. Dr. E. Peters stated that Smt. Laxmi had been operated by her for atresia vagina. This term, according to her, meant absence of canalisation of (he vagina. She further stated that she had reconstructed Laxmis vagina by plastic surgery by removing a V shaped flap from the thigh and suturing it in layers at the place where the normal vagina is. She further stated that after this operation Smt. Laxmi was capable of having sexual intercourse. She added that the vagina was likely to become bigger with repetition of sexual intercourse. Dr. E. Peters further stated that the normal length of vagina is about 4-/2 inches varying according to the height of the person. The girl had no cervix or uterus and these could not be reconstructed. Dr. Miss Saxena P. W. 2 deposed that female impotency was not a medical term and such a state of women is denoted by the expression absence of libido which meant that the woman had no desire for sex and satisfaction thereof. She further stated that the external genetalia of Smt. Laxmi were under developed and only two fingers could be introduced into the vagina whose length was 2-1/2 inches. According to Dr. Saxena also there was no cervix and also no uterus. Further there was no failure of mullarian duct system. Dr. Saxena admitted that the vagina of Smt. Laxmi had been artificially formed by use of sking graft from the thigh. According to Dr. According to Dr. Saxena also there was no cervix and also no uterus. Further there was no failure of mullarian duct system. Dr. Saxena admitted that the vagina of Smt. Laxmi had been artificially formed by use of sking graft from the thigh. According to Dr. Saxena, as the vagina admitted two fingers it was possible that Smt. Laxmi could have sexual intercourse. She, however, could not say whether Smt. Laxmi was used to sexual intercourse after the reconstruction of the vagina. According to Dr. Saxena too though the reconstructed vagina of Smt. Laxmi was 2-1/2 inches long yet repeated intercourse could increase the laxity. Further, according to Dr. Saxena, sexual act is complete when both the husband and wife are satisfied with the act. 8. It further appears that the learned Judge during the course of hearing tried to persuade the wife and her people to allow the husband to examine the private parts of the girl with a view to seeing if he could have sexual intercourse with her, but as the wife and her people were unwilling for this the learned District Judge presumed th|at the wife was still incapable of sexual intercourse. The learned District Judge accepted the view propounded by Dr. Lushington in 1845(1) Rob Eccel, 279 about the kind of sexual satisfaction and then reached the conclusion that the wife was impotent at the time of marriage and continued to be so till the presentation of the petition by the husband under sec. 12 of the Act and that she had failed to consummate the marriage. Consequently the learned Judge passed a decree for annulment of the marriage. 9. Learned counsel for the appellant found himself unable to challenge the conclusion of the learned Judge that the wife was impotent at the time of the marriage. He, however, maintained that after the operation and with the reconstruction of the vagina the wife cannot be said to be impotent at the time of the presentation of the petition under sec. 12 of the Act. He, however, maintained that after the operation and with the reconstruction of the vagina the wife cannot be said to be impotent at the time of the presentation of the petition under sec. 12 of the Act. Learned counsel submitted that the reconstructed vagina could enable the husband to have full sexual satisfaction; though to start with there might be some difficulty in having complete satisfaction but with repeated intercourse the vagina would be enlarged as stated by the doctors and consequently it cannot be said that the husband had succeeded in proving the continued impotency of the wife at the time of the presentation of the petition under section 12 of the Act. Learned counsel placed reliance on Prajapati Ganeshji Idaji vs. Hastuben Hemraj(l), Jagdish Lal vs. Smt. Shyama(2) and S. vs. S.(3). 10. Learned counsel for the respondent, on the other hand, submitted that the avowed object of marriage was not only sexual relationship but to procreate the children as well. Learned counsel relied on certain passages from Narad Smiti and other texts which have been referred to in Ganeshjis case(l). Learned counsel further submitted that in the present case there was complete absence of vagina and in a case where the vagina has been altogether newly constructed the sexual intercourse as would consummate the marriage cannot be natural. Further, even the reconstructed vagina was under sized, that is, 2-1/2" according to one lady doctor and 3" according to the other when the normal size of a vagina is 4" to 4-1/2". Such a small artificial vagina, according to learned counsel, would not admit complete penetration and, therefore, the sex satisfaction can never be complete and one cannot be expected to go on with partial satisfaction in such a matter. Learned counsel relied on Dr. Lushingtons passage as also on D. vs. D (4). 11. Now there is no manner of doubt in my mind that the wife was important at the time of the marriage According to Dr. Peters, there was complete absence of vagina which the doctor had later on explained as absence of canalisation of the vagina. In cross-examination Dr. Peters had admitted that she had examined the respondent on 6-1-68 and issued the certificate Ex.1 and further at that time she found a complete absence of the vagina. Peters, there was complete absence of vagina which the doctor had later on explained as absence of canalisation of the vagina. In cross-examination Dr. Peters had admitted that she had examined the respondent on 6-1-68 and issued the certificate Ex.1 and further at that time she found a complete absence of the vagina. Therefore, the present is a case where the vagina did not exist and only an artificial vagina or a cavity had been constructed. The question is whether thereby the impotency in the woman can be said to have come to an end. The woman had no cervix or uterus and was thus incapable of bearing a child. Learned counsel for the respondent wants me to take this into consideration in judging the impotency or otherwise of the girl. Dr. Lushingtons oft quoted passage is :— "If there be a reasonable probability that the lady can be made capable of a vera copula of the natural sort of coitus, though without power of conception. I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipient, imperfect, and unnatural coitus, I would pronounce the marriage void." In England these observations have been taken to be emanating from a great authority and were approved by the House of Lords in Baxter vs. Baxter(5) .These observations were again considered in S. vs. S.(6). The learned Lord Justices pointed out that this statement on the part of Dr. Lushington was by no means conclusive as he had nowhere defined what was meant by "vera copula". In S. vs. S.(6), the wife had malformed vagina, too short to permit full penetration but according to the medical evidence it was capable of being enlarged by an operation with good chance of the operation being successful so as to allow full penetration. The operation would involve removal of the soft tissues where the normal vagina would be in order to create a passage which would be lined by skin from the thigh. The absence of the natural membrane and its special sensory quality and of normal secretions would affect the degree of sexual satisfaction obtainable from intercourse by the wife but would not affect materially that of husband though there would be no conception of children, the wife having no uterus. The absence of the natural membrane and its special sensory quality and of normal secretions would affect the degree of sexual satisfaction obtainable from intercourse by the wife but would not affect materially that of husband though there would be no conception of children, the wife having no uterus. It was considered that inability to conceive was no ground for finding incapacity to consummate the marriage and further the degree of sexual satisfaction obtainable was immaterial. The learned Lord Justices came to the conclusion that the fact that full penetration could only be rendered possible either by surgery cradicating a malformation of the wifes vagina or on the hypothesis that there was no natural vagina, by surgery creating an artificial vagina, would not prevent subsequent sexual acts amounting to consummation of the marriage. In other words, the wifes incapacity was thus curable and a decree of nullity was refused. 12. In Ganeshji vs. Hastuben(I) on which learned counsel for the appellant strongly loans, the wife was found to have a short vagina and that it was communicating with restum. Three operations were then performed on the wife namely, colostomy, vagina plasty and repair of resto vagina fistual as well as closure of colostomy. According to the doctor, after these operations were performed the husband would be able to have normal cotius. 13. I have carefully considered these cases. To my mind, these cases would govern a situation where the vagina would be there, but it may not enable completion of the act on account of it being undersized or on account of any other structural defect, but where there is complete absence of vagina, as in the present case, the sexual intercourse even if it were possible cannot be said to be a natural one and, to my mind, vera copula would be wanting. The observations in S. vs. S.(6) came to be considered in a recent case Corbett vs. Corbett(7) Ormrod J. who decided the case observed thus regarding the observations in S. vs. S.(6) : — "I am aware that this view is not in accordance with some of the observations of the Court of Appeal in S. vs. S. (otherwise W), but in my respectful opinion, these parts of the judgments which refer to wholly artificial vagina go beyond what was necessary for the decision in that case and should be regarded as obiter. The respondent in that case was assumed to be a woman, with functioning ovaries, but with a congenital abnormality of the vagina, which was only about two inches long and small in diameter, according to the report of the medical inspectors. This is a very different situation from the one which confronts me. There are, I think certain dangers in attempting to analyse too meticulously the essentials of normal sexual intercourse, and much wisdom in another of Dr. Lushingtons observations in the same case where he said : It is no easy matter to discover and define a safe principle to act upon : perhaps it is impossible affirmatively to lay down any principle which, if carried to either extreme, might not be mischievous. The mischief is that, by over-refining and over-defining the limits of normal, one may, in the end, produce a situation in which consummation may come to mean something altogether different from normal sexual intercourse. In this connection, I respectfully agree with the judgment of Brandon J in W. (otherwise) K. vs. W. [The possibility mentioned by Willmer L.J. in him judgment in S. vs. S. (otherwise W) that a married man might have sexual relations with a person, using a recalled artificial vagina, and yet not commit adultery, does not seem to me to be very important, since neither oral intercourse with a woman, nor mutual masturbation will afford the wife the remedy of adulterys : Sapsford vs. Sapsford and Furtado." Since present is the case of complete absence of vagina and a wholly artificial vagina had been constructed, I find myself unable to come to the conclusion that the husband can be said to have the normal satisfaction coming from a sexual intercourse. Apart from this, even after the operation the so-called vagina was yet wiper-sized being only 24 or 3" in length. The lady doctor had admitted that the tissues would be softened with repetition of sex act and then the intercourse may be giving full satisfaction. Be that as it may, the fact remains that, in the first place, the girl had no vagina and the vagina was artificially constructed and, in the second place, the constructed vagina was at any rate under-sized. Consequently in this case it cannot be said that the husband can have sexual intercourse to his satisfaction. 14. Be that as it may, the fact remains that, in the first place, the girl had no vagina and the vagina was artificially constructed and, in the second place, the constructed vagina was at any rate under-sized. Consequently in this case it cannot be said that the husband can have sexual intercourse to his satisfaction. 14. The learned District Judge has tried to persuade the wife to go to the husband and to have him the opportunity of examining her and then satisfying himself if he could have sexual intercourse with her. From the refusal of the wife and her people the learned District Judge presumed the continued incapacity of the wife for sexual intercourse. I am afraid, one cannot approve of the way in which the learned District Judge proceeded. It is not for the Court to persuade the parties for having an opportunity of sexual intercourse. It is for the parties themselves to call upon each other and then prove that such an opportunity was denied. In that case the Court might draw such presumption as may, be justified but such proposals should not normally emanate from the Court. Be that as it may. even otherwise I am satisfied that normal sexual intercourse with this girl is not possible. 15. Learned counsel for the respondent wanted to bring in the concept of ability to procreate with the capacity of having sexual intercourse and he wanted to place reliance on certain texts. He referred to Verse 19 from Narad Smriti (Sacred Books of the East, Vol. 33, Chapter 12, P. 169). The Verse runs thus : ^^viR;kFkZ fL=; l`"Vk% L=h{ks;a chftuks ujk%A {ks=aoht;rs oS;a ukchth{ks=eghZrAA 19 AA^^ The translation of the verse is as follows : "Women have been created for the sake of propagation, the wife being the field and the husband the giver of the seed. The field must be given to him who has seed. He who has no seed is unworthy to possess the field." However, I an unable to accept the position that the ability to procreate children is not a necessary ingredient of potency. Impotency in matrimonial cases has been understood to mean incapacity to consummate the marriage,that is to say, incapacity to have conjugal intercourse which is one of the objects of the marriage. Impotency in matrimonial cases has been understood to mean incapacity to consummate the marriage,that is to say, incapacity to have conjugal intercourse which is one of the objects of the marriage. Further it is not absolutely necessary that the incapacity to perform the sex act must be general because though a person may generally be capable of a sex act yet he may be incapable of it vis a-vis a particular individual. The Court can grant the relief if one spouse is found to be incompetent in relation to the other spouse. 16. In Jagdish Lal vs. Smt. Shyama(2) this is what has been said about impotency :— "Importency means incapacity for accomplishing the act of sexual intercourse and in this context, sexual intercourse means not an incipient, partial or imperfect but a normal and complete coitus. Impotency has to be distinguished from sterility which may in some cases accompany impotency but is not necessarily associated with it. The two expressions denote lack of two different powers. A person may be incapable of accomplishing the sexual act and yet be capable of procreating. Conversely also, a person may be incapable of procreating and yet be capable of accomplishing the sexual act. The cause of impotency may be in the malformation or structural defect in the parts; in the functions, resulting in imperfect erection or premature ejaculation; in diseases, local or general or in the mind, manifesting itself a repugnance for the sexual act, fear, lack of confidence, etc. In some cases a person may be capable of having sexual intercourse but incapable of performing it with a particular individual, and in such a case he must be regarded as impotent in relation to that particular individual regardless of his potency in general. I find myself in respectful agreement with the above passage. 17. I, therefore, affirm the finding of the learned District Judge about the impotency of the wife both as the time of the marriage and at the time of the presentation of the petition under sec. 12 of the Act and that the marriage has not been consummated on account of the wifes incapacity. 18. Learned counsel for the appellant orally prayed that costs of the litigation in this Court be allowed to the appellant and further in the event of the decree being affirmed permanent alimony be allowed to the wife. The prayer is reasonable. 12 of the Act and that the marriage has not been consummated on account of the wifes incapacity. 18. Learned counsel for the appellant orally prayed that costs of the litigation in this Court be allowed to the appellant and further in the event of the decree being affirmed permanent alimony be allowed to the wife. The prayer is reasonable. Rupees one hundred had been allowed as expenses of litigation by the learned District Judge and Rs. 50/- per month were allowed as interim alimony. I should think Rs. 100/- be allowed as expenses of litigation in this Court to the appellant and she should get a maintenance of Rs. 50/- per month from the husband during her life time till she remarries. Learned counsel for the respondent has paid Rs. 100/- to learned counsel for the appellant as costs of the appeal. 19. The result is that I allow the appeal in part. While I maintain the judg-ment and decree of the learned District Judge regarding the annulment of the marriage, I order that the respondent husband shall pay Rs, 50/- per month to the appellant wife as her maintenance during her lifetime till she remarries. The parties are, however, left to bear their own costs.